SENATE 



63d Congress ) 
1st Session ) 


/ Document 
I No. 233 


HIGHER NATIONALITY 


AN ADDRESS 

ON “HIGHER NATIONALITY,” BEING A STUDY 
IN LAW AND ETHICS. DELIVERED BEFORE THE 
AMERICAN BAR ASSOCIATION AT MONTREAL, 
CANADA. SEPTEMBER 1-3, 1913 


By 

RIGHT HON. RICHARD BURDON HALDANE 

LORD HIGH CHANCELLOR OF GREAT BRITAIN 



PRESENTED BY MR. ROOT 
November 6, 1913.—Ordered to be printed 


WASHINGTON 

1913 





























n. 

n! OV 


OF D. 

15 


<918 


S 


• « 

• • •* 

• •> 

ft 










HIGHER NATIONALITY. 


By Right Hon. Richard Burdon Haldane. 


It is with genuine pleasure that I find myself among my fellow- 
lawyers of the New World. But my satisfaction is tempered by a 
sense of embarrassment. There is a multitude of topics on which it 
would be most natural that I should seek to touch. If, however, I 
am to use to any purpose the opportunity which you have accorded 
me, I must exclude all but one or two of them. For in an hour like 
this, as in most other times of endeavor, he who would accomplish 
anything must limit himself. What I have to say will therefore be 
confined to the suggestion of little more than a single thought, and 
to its development and illustration with materials that lie to hand. 
I wish to lay before you a result at which I have arrived after re¬ 
flection, and to submit it for your consideration with such capacity 
as I possess. 

For the occasion is as rare as it is important. Around me I see 
assembled some of the most distinguished figures in the public life 
of this continent; men who throughout their careers have combined 
law with statesmanship, and who have exercised a potent infiuence 
in the fashioning of opinion and of policy. The law is indeed a call¬ 
ing notable for the individualities it has produced. Their production 
has counted for much in the past of the three nations that are rep¬ 
resented at this meeting, and it means much for them to-day. 

What one who finds himself face to face with this assemblage 
naturally thinks of is the future of these three nations; a future 
that may depend largely on the influence of men with opportunities 
such as ours. The United States and Canada and Great Britain 
together form a group which is unique; unique because of its com¬ 
mon inheritance in traditions, in surroundings, and in ideals. And 
nowhere is the character of this common inheritance more apparent 
than in the region of jurisprudence. The lawyers of the three 
countries think for the most part alike. At no period has political 
divergence prevented this fact from being strikingly apparent. 
Where the letter of their law is different the spirit is yet the same, 
and it has been so always. As I speak of the historical tradition of 
our great calling, and of what appears likely to be its record in days 
to come, it seems to me that we who are here gathered may well 
proclaim, in the words of the Spartans, “We are what you were; 
we shall be what you are.” 




4 


HIGHER NATIONALITY. 


It is this identity of spirit, largely due to a past which the lawyers 
of the group have inherited jointly, that not only forms a bond 
of union but furnishes them with an influence that can hardly be 
reproduced in other nations. I take my stand on facts which are 
beyond controversy, and seek to look ahead. I ask you to consider 
with me whether we, who have in days gone by molded their laws, 
are not called on to try in days that lie in front to mold opinion 
in yet another form, and so encourage the nations of this group to 
develop and recognize a reliable character in the obligations they 
assume toward each other. For it may be that there are relations 
possible within such a group of nations as is ours that are not pos¬ 
sible for nations more isolated from each other and lacking in our 
identity of history and spirit. Canada and Great Britain on the 
one hand and the United States on the other, with their common lan¬ 
guage, their common interests, and their common ends, form some¬ 
thing resembling a single society. If there be such a society it may 
develop within itself a foundation for international faith of a kind 
that is new in the history of the world. Without interfering with 
the freedom of action of these great countries, or the independence 
of their constitutions, it may be possible to establish a true unison 
between sovereign states. This unison will doubtless, if it ever 
comes into complete being, have its witnesses in treaties and written 
agreements. But such documents can never of themselves constitute 
it. Its substance, if it is to be realized, must be sought for deeper 
down in an intimate social life. I have never been without hope that 
the future development of the world may bring all the nations that 
compose it nearer together, so that they Avill progressively cease to 
desire to hold each other at arm’s length. But such an approxima¬ 
tion can only come about very gradually, if I read the signs of the 
times aright. It seems to me to be far less likely of definite realiza¬ 
tion than in the case of a group united by ties such as those of which 
I have spoken. 

Well, the growth of such a future is at least conceivable. The sub¬ 
stance of some of the things I am going to say about its conception 
and about the way by which that conception may become real is as 
old as Plato. Yet the principles and facts to which I shall have 
to refer appear to me to be often overlooked by those to whom they 
might well appear obvious. Perhaps the reason is the deadening 
effect of that conventional atmosphere out of which few men in 
public life succeed in completely escaping. We can best assist in 
the freshening of that atmosphere by omitting no opportunity of 
trying to think rightly, and thereby to contribute to the fashioning of 
a more hopeful and resolute kind of public opinion; for, as some 
one has said, “ L’opinion generale dirige Tautorite, quels qu’en soient 
les depositoires.” 

The chance of laying before such an audience as this what was in 
my mind made the invitation which came from the bar association 
and from the heads of our great profession, both in Canada and in 
the United States, a highly attractive one. But before I could accept 
it I had to obtain the permission of my sovereign; for, as you know, 
the lord chancellor is also custos sigilli, the keeper of that great 
seal under which alone supreme executive acts of the British crown 
can be done. It is an instrument he must neither quit without special 
authority nor carry out of the realm. The head of a predecessor of 


HIGHER NATIONALITY. 


5 


mine, Cardinal Wolsey, was in peril because he was so daring as to 
take the great seal across the water to Calais when he ought instead 
to have asked his sovereign to put it into commission. 

Well, the clavis regni was on the present occasion put safely into 
commission before I left, and I am privileged to be here with a com¬ 
fortable constitutional conscience. But the King has done more than 
graciously approve of my leaving British shores. I am the bearer 
to you of a message from him which I will now read: 

I have given my lord chancellor permission to cross the seas, so that he may 
address the meeting at Montreal. I have asked him to convey from me to that 
great meeting of the lawyers of the United States and of Canada my best 
wishes for its success. I entertain the hope that the deliberations of the dis¬ 
tinguished men of both countries who are to assemble at Montreal may add 
yet further to the esteem and good will which the people of the United States 
and of Canada and the United Kingdom have for each other. 

The King’s message forms a text for what I have to say; and hav¬ 
ing conveyed that message to you, I propose in the first place to turn 
to the reasons which make me think that the class to which you and I 
belong has a peculiar and extensive responsibility as regards the 
future relations of the three countries. But these reasons turn on the 
position which courts of law hold in Anglo-Saxon constitutions, and 
before I enter on them I must recall to you the character of the tra¬ 
dition that tends to fashion a common mind in you and me as 
members of a profession that has exercised a profound influence on 
Anglo-Saxon society. It is not difficult in an assemblage of lawyers 
such as we are to realize the process by which our customary habits 
of thought have come into being and bind us together. The spirit of 
the jurisprudence which is ours, of the system which we apply to 
the regulation of human affairs in Canada, in the United States, 
and in Great Britain alike, is different from that which obtains in 
other countries. It is its very peculiarity that lends to it its potency, 
and it is worth while to make explicit what the spirit of our law 
really means for us. 

I read the other day the reflections of a foreign thinker on what 
seemed to him the barbarism of the entire system of English juris¬ 
prudence, in its essence judge made and not based on the scientific 
foundation of a code. I do not wonder at such reflections. There 
is a gulf fixed between the method of a code and such procedure as 
that of Chief Justice Holt in Coggs v. Bernard, of Chief Justice 
Pratt in Armory v. Delmairie, and of Lord Mansfield when he de¬ 
fined the count for money had and received. A stranger to the 
spirit of the law as it was evolved through centuries in England 
will always find its history a curious one. Looking first at the early 
English common law, its most striking feature is the enormous extent 
to which its founders concerned themselves with remedies before 
settling the. substantive rules for breach of which the remedies were 
required. Nowhere else, unless perhaps in the law of ancient Eome, 
do we see such a spectacle of legal writs making legal rights. Of the 
system of the common law there is a saying of Mr. Justice Wendell 
Holmes which is profoundly true: 

The life of the law has not been logic; it has been experience. The felt 
necessities of the time, the prevalent moral and political theories, intentions 
of public policy, avowed or unconscious, even the prejudices which judges 
share with their fellow men, have had a good deal more to do than the syl¬ 
logism in determining the rules by which men should be governed. The law 


6 


HIGHER NATIONALITY. 


embodies the story of a nation’s development through many centuries, and it 
can not be dealt with as if it contained only the axioms and corollaries of a book 
of mathematics. 

As the distinguished writer whom I have quoted tells us, we can 
not, without the closest application of the historical method, com¬ 
prehend the genesis and evolution of the English common law. Its 
paradox is that in its beginnings the forms of action came before 
the substance. It is in the history of English remedies that we have 
to study the growth of rights. I recall a notable sentence in one 
of Sir Henry Maine’s books. “ So great,” he declares, “ is the as¬ 
cendancy of the law of actions in the infancy of courts of justice 
that substantive law has at first the look of being gradually secreted 
in the interstices of procedure.” I will add to his observation this: 
That all our reforms notwithstanding, the dead hands of the old 
forms of action still rest firmly upon us. In logic the substantive 
conceptions ought, of course, to have preceded these forms. But 
the historical sequence has been different, for reasons with which 
every competent student of early English history is familiar. The 
phenomenon is no uncommon one. The time spirit and the spirit 
of logical form do not always, in a world where the contingent is 
ever obtruding itself, travel hand in hand. The germs of substan¬ 
tive law were indeed present as potential forces from the beginning, 
but they did not grow into life until later on. And, therefore, forms 
of action have thrust themselves forward with undue prominence. 
That is why the understanding of our law is, even for the practi¬ 
tioner of to-day, inseparable from Imowledge of its history. 

As with the common law, so it is with equity. To know the prin¬ 
ciples of equity is to Imow the history of the courts in which it has 
been administered, and especially the history of the office which at 
present I chance myself to hold. Between law and equity there is 
no other true line of demarcation. The King was the fountain of 
justice. But to get justice at his hands it Avas necesary first of all 
to obtain the King’s writ. As Bracton declared, ‘‘non potest quis 
sine brevi agere.” But the King could not personally look after the 
department where such writs were to be obtained. At the head of 
this his chancery he therefore placed a chancellor, usually a bishop, 
but sometimes an archbishop, and even a cardinal, for in those days 
the church ha d a grip which to a lord chancellor of the twentieth cen¬ 
tury is unfamiliar. At first the holder of the office was not a judge. 
But he was keeper of the King’s conscience, and his business Avas to 
see that the King’s subjects had remedies when he considered that 
they had suffered wrongs. Consequently he began to invent new 
writs, and finally to develop remedies Avhich were not confined by 
the rigid precedents of the common law. Thus he soon became a 
judge. When he found that he could not grant a common-law writ 
he took to summoning people before him and to searching their con¬ 
sciences. He inquired, for instance, as to trusts which they were 
said to have undertaken, and as the result of his inquiries rights 
and obligations unknown to the common laAV were born in his court 
of conscience. You see at a glance how susceptible such a practice 
was of development into a complete system of equity. You would 
expect, moreover, to find that the ecclesiastical atmosphere in which 
my official predecesors lived would infiuence the forms in which they 
molded their special system of jurisprudence. This did, indeed. 


HIGHER NATIONALITY. 


7 


happen, but even in those days the atmosphere was not merely ec¬ 
clesiastical. For the lord high chancellor in the household of an 
early English monarch was the King’s domestic chaplain, and as, 
unlike his fellow servants in the household, the lord high steward 
and the lord great chamberlain, he always possessed the by no means 
common advantage of being able to read and write, he acted as the 
King’s political secretary. He used, it seems, in early days to live in 
the palace and he had a regular daily allowance. From one of the 
records it appears that his wages were 5 shillings, a simnel cake, 2 
seasoned simnels, 1 sextary of clear wine, 1 sextary of household 
wine, 1 large wax candle, and 40 small pieces of candle. In the time 
of Henry II the modern treasury spirit appears to have begun to 
walk abroad, for in the records the allowance of 5 shillings appears 
as if subjected to a reduction. If he dined away from the palace, 
si extra domum comederit, and was thereby forced to provide extras, 
then, indeed, he got his 5 shillings. But if he dined at home, intra 
domum, he was not allowed more than 3 shillings and sixpence. The 
advantage of his position was, however, that, living in the palace, 
he was always at the King’s ear. He kept the great seal, through 
which all great acts of state were manifested. Indeed, it was the 
custody of the great seal that made him chancellor. Even to-day 
this is the constitutional usage. When I myself was made lord 
chancellor the appointment was effected, not by letters patent, nor by 
writing under the sign manual, nor even by words spoken, but by the 
Sovereign making a simple delivery of the great seal into my hands 
while I knelt before him at Buckingham Palace in the presence of 
the privy council. 

The reign of Charles I saw the last of the ecclesiastical chancellors. 
The slight sketch of the earlier period which I have drawn shows 
that in these times there might well have developed a great divergence 
of equity from the common law. under the influence of the canon and 
Roman laws to which ecclesiastical chancellors would naturally turn. 
In the old courts of equity it was natural that a different atmosphere 
from that of the common-law courts should be breathed. But with 
the gradual drawing together of the courts of law and equity under 
law chancellors the difference of atmosphere disappears, and we see 
the tw"o systems becoming fused into one. 

The moral of the whole story is the hopelessness of attempting to 
study Anglo-Saxon jurisprudence apart from the history of its 
growth and of the characters of the judges who created it. It is by 
no accident that among Anglo-Saxon lawyers the law does not assume 
the form of codes, but is largely judge-made. We have statutory 
codes for portions of the field which we have to cover. But these 
statutory codes come not at the beginning, but at the end. For the 
most part the law has already been made by those who practice it 
before the codes embody it. “^Such codes Avith us arrive only with 
the close of the day, after its heat and burden have been borne and 
Avhen the journey is already near its end. 

I have spoken "of a spirit and of traditions which have been appar¬ 
ent in English laAv. But they have made their influence felt else¬ 
where. My judicial colleagues in the Province of Quebec administer 
a system which is partly embodied in a great modern code and partly 
depends on old French law of the period of Louis XIV. They apply, 


8 


HIGHER NATIONALITY. 


moreover^ a good deal of the public and commercial law of England. 
The relation of the code to these systems has given rise to some contro¬ 
versies. What I have gathered, however, when sitting in the judicial 
committee of the privy council, is that a spirit not very different from 
that of the English lawyers has prevailed in Quebec. The influence 
of the judges in molding the law and of legal opinion in fashioning 
the shape which it should take seem to me to have been hardly less 
apparent in Quebec than elsewhere in Canada. Indeed, the several 
systems of our group of nations, however these systems have origi¬ 
nated, everywhere show a similar spirit, and disclose the power of 
our lawyers in creating and developing the law as well as in chang¬ 
ing it, a power which has been more exercised outside the legislature 
than within it. It is surely because the lawyers of the New World 
have an influence so potent and so easily wielded that they have been 
able to use it copiously in a wider field of public affairs than that of 
mere jurisprudence. It is very striking to the observer to see how 
many of the names of those who have controlled the currents of 
public opinion in the United States and Canada alike have been the 
names of famous lawyers. I think this has been so partly because 
the tradition and spirit of the law were always what I have described 
and different from that on the Continent of Europe. But it has also 
been so because, in consequence of that tradition and spirit, the voca¬ 
tion of the lawyers has not, as on the Continent of Europe, been that 
of a segregated profession of interpreters, but a vocation which has 
placed him at the very heart of affairs. In the United Kingdom this 
has happened in the same fashion, yet hardly to so great an extent, 
because there has been competition of other and powerful classes 
whose tradition has been to devote their lives to a parliamentary 
career. But in the case of all three nations it is profoundly true that, 
as was said by the present President of the United States in 1910. in 
an address delivered to this very association, ‘‘ the country must find 
lawyers of the right sort and the old spirit to advise it, or it must 
stumble through a very chaos of blind experiment. It never,” he 
went on to add, “ needed lawyers who are also statesmen more than 
it needs them now; needs them in its courts, in its legislatures, in its 
seats of executive authority; lawyers who can think in the terms of 
society itself.” 

This at least is evident, that if you and I belong to a great calling 
it is a calling in which we have a great responsibility. We can do 
much to influence opinion, and the history of our law and the char¬ 
acter of our tradition render it easy for us to attain to that unity in 
habit of thought and sentiment which is the first condition of com¬ 
bined action. That is why I do not hesitate to speak to you as I am 
doing. 

And having said so much, I now submit to you my second point. 
The law has grown by development through the influence of the opin¬ 
ion of society guided by its skilled advisers. But the law forms only 
a small part of the system of rules by which the conduct of the citi¬ 
zens of a State is regulated. Law, properly so called, whether civil 
or criminal, means essentially those rules of conduct which are ex¬ 
pressly and publicly laid down by the sovereign will of the State and 
are enforced by the sanction of compulsion. Law, however, imports 
something more than this. As I have already remarked, its full sig- 


HIGHER NATIONALITY. 


9 


nificance can not be understood apart from the history and spirit of 
the nation whose law it is. IMoreover. it has a real relation to the 
obligations even of conscience, as well as to something else which I 
shall presently refer to as the general will of society. In short, if its 
lull Significance is to be appreciated, larger conceptions than those of 
the mere law 3 ^er are essential—conceptions which come to us from the 
moralist and the sociologist and without which Ave can not see fully 
how the genesis of law has come about. That is where writers like 
Bentham and Austin are deficient. One can not read a great book 
like the Esprit des Lois without seeing that Montesquieu had a deeper 
insight than Bentham or Austin and that he had already grasped a 
truth which, in Great Britain at all events. Avas to be forgotten for a 
time. 

Besides the rules and sanctions AA’liich belong to law and legality, 
there are other rules with a different kind of sanction Avhich also in¬ 
fluence conduct. I have spoken of conscience, and conscience, in the 
strict sense of the word, has its oAvn court. But the tribunal of con¬ 
science is a private one and its jurisdiction is limited to the individual 
whose conscience it is. The moral rules enjoined by the private con¬ 
science may be the very highest of all. But they are enforced only by 
an iiiAvard and private tribunal. Their sanction is subjective and not 
binding in the same way on all men. The A^eiw loftiness of the motive 
AAdiich makes a man love his neighbor more than himself, or sell all 
his goods in order that he may obev a great and iiiAvard call, renders 
that motive in the highest cases incapable of being made a rule of uni¬ 
versal application in any positive form. And so it was that the 
foundation on which one of the greatest of modern moralists, Im- 
rnanuel Kant, sought to base his ethical svstem had to be revised by 
his successors. For it was found to reduce itself to little more than a 
negative and therefore barren obligation to act at all times from max¬ 
ims fit for laAv universal—maxims Avhich, because merely negative, 
turned out to be inadequate as guides through the field of daily con¬ 
duct. In point of fact, that field is coA^ered in the case of the citizen 
only to a small extent by law and legalitA^ on the one hand and by the 
dictates of the individual conscience on the other. There is a more 
extensive system of guidance which regulates conduct and Avhich 
differs from both in its character and sanction. It applies, like laAv, 
to all the members of a society alike Avithout distinction of persons. 
It resembles the morality of conscience in that it is enforced by no 
legal compulsion. In the English language Ave have no name for it, 
and this is unfortunate, for the lack of a distinctiA e name has occa¬ 
sioned confusion both of thought and of expression. German writers 
have, however, marked out the svstem to Avhich I refer and have 
given it the name of “ Sittlichkeit.” 

In his book, Der Zweck im Recht, Budol])h A’on Jhering, a famous 
professor at Gottingen, Avith whose figure I Avas familiar when I was 
a student there nearly 40 years ago, pointed out, in the part which 
he devoted to the subject of “ sittlichkeit,” that it AA^as the merit of 
the German language to have been the onl,y one to find a really dis¬ 
tinctive and scientific expression for it. ** Sittlichkeit ” is the system 
of habitual or customary conduct, ethical rather than legal, which em¬ 
braces all those obligations of the citizen Avhich it is “ bad form ” or 
‘‘ not the thing ” to disregard. Indeed, regard for these obligations 
is frequently enjoined merel}" by the social penaltA’ of being “ cut ” 


10 


HIGHER NATIONALITY. 


or looked on askance. xVnd yet the system is so generally accepted 
and is held in so high regard that no one can venture to disregard it 
without in some way suffering at the hands of his neighbors for so 
doing. If a man maltreats his wife and children or habitually 
jostles his fellow citizen in the street or does things flagrantly selfish 
or in bad taste, he is pretty sure to find himself in a minority and 
the worse off in the end. But not only does it not pay to do these 
things, but the decent man does not wish to do them. A feeling 
analogous to what arises from the dictates of his more private and 
individual conscience restrains him. He finds himself so restrained 
in the ordinary affairs of daily life. But he is guided in his conduct 
by no mere inward feeling, as in the case of conscience. Conscience 
and, for that matter, law overlap parts of the sphere of social obliga¬ 
tion about which I am speaking. A rule of conduct may, indeed, 
appear in more than one sphere, and may consequently have a two¬ 
fold sanction. But the guide to which the citizen mostly looks is 
just the standard recognized by the community, a community made 
up mainly of those fellow citizens whose good opinion he respects 
and desires to have. He has everywhere round him an object lesson 
in the conduct of decent people toward each other and toAvard the 
community to Avhich they belong. Without such conduct and the 
restraints Avhich it imposes there could be no tolerable social life, and 
real freedom from interference would not be enjoyed. It is the 
instinctive sense of Avhat to do and Avhat not to do in daily life and 
behavior that is the source of liberty and ease. And it is this instinc¬ 
tive sense of obligation that is the chief foundation of society. Its 
reality takes objective shape and displays itself in family life and in 
our other civic and social institutions. It is not limited to any one 
form, and it is capable of manifesting itself in new forms and of 
developing and changing old forms. Indeed, the civic community is 
more than a political fabric. It includes all the social institutions in 
and by which the individual life is influenced, such as are the family, 
the school, the church, the legislature, and the executive. None of 
these can subsist in isolation from the rest; together they and other 
institutions of the kind form a single organic whole, the whole which 
is known as the nation. The spirit and habit of life Avhich this 
organic entirety inspires and compels are Avhat, for my present pur¬ 
pose, I mean by “ sittlichkeit.'' Sitte ” is the German for custom, 
and ‘‘ sittlichkeit ” implies custom and a habit of mind and action. 
It also implies a little more. Fichte^ defines it in words which are 
worth quoting and which I Avill put into English: “What, to begin 
with,” he says, “ does ‘ sitte ’ signify, and in what sense do we use 
the Avord ? It means for us, and means in every accurate reference we 
make to it, those principles of conduct Avhich regulate people in their 
relations to each other and Avhich have become matter of habit and 
second nature at the stage of culture reached and of Avhich, there¬ 
fore, we are not explicitly conscious. Principles we call them, because 
we do not refer to the sort of conduct that is casual or is determined 
on casual grounds, but to the hidden and uniform ground of action 
which Ave assume to be present in the man Avhose action is not deflected 
and from which Ave can pretty certainly predict what he Avill do. 
Principles, Ave say, AAdiich have become a second nature and of which 


1 Grundzuge des Gegenwartigen Zeitalters. AA^erke, Band 7, p. 214. 



HIGHER NATIONALITY. 


11 


we are not explicitly conscious. We thus exclude all impulses and 
motives based on free individual choice, the inward aspect of ‘ sitt- 
lichkeit,’ that is to say morality, and also the ouhvard side, or law, 
alike. For what a man has first to reflect over and then freely to 
resolve is not for him a habit in conduct, and in so far as habit in 
conduct is associated with a particular age it is regarded as the uncon¬ 
scious instrument of tlie time spirit.” 

The system of ethical habit in a community is of a dominating 
character, for the decision and influence of the whole community is 
embodied in that social habit. Because such conduct is systematic 
and covers the whole of the field of society the individual Avill is 
closely related by it to the will and spirit of the community. And 
out of this relation arises the power of adequately controlling the 
conduct of the individual. If this power fails or becomes weak, the 
community degenerates and may fall to pieces. Different nations 
excel in their “ Sittlichkeit ” in different fashions. The spirit of the 
community and its ideals may vary greatly. There may be a low 
level of Sittlichkeit,” and we have the spectacle of nations which 
have even degenerated in this respect. It may possibly conflict with, 
law and morality, as in the case of the duel. But when its level is 
high in a nation we admire the system, for we see it not only guiding 
a people and binding them together for national effort, but affording 
the most real freedom of thought and action for those who in daily 
life habitually act in harmony with the general will. 

Thus we have in the case of a community, be it the city or be it 
the State, an illustration of a sanction which is sufficient to compel 
observance of a rule without any question of the application of force. 
This kind of sanction may be of a highly compelling quality, and it 
often extends so far as to make the individual prefer the good of the 
community to his own. The development of many of our social in¬ 
stitutions, of our hospitals, of our universities, and of other establish¬ 
ments of the kind, shows the extent to which it reaches and is power¬ 
ful. But it has yet higher forms, in which it approaches very nearl}^ 
to the level of the obligation of conscience, although it is distinct from 
that form of obligation. I will try to make clear what I mean by 
illustrations. A man may be impelled to action of a high order by 
his sense of unity with the society to which he belongs, action of 
which, from the civil standpoint, all approve. AVhat he does in such 
a case is natural to him, and is done without thought of reward or 
punishment, but it has reference to standards of conduct set up by 
society and accepted just because society has set them up. There is 
a poem by the late Sir Alfred Lyall, which exemplifies the high level 
that may be reached in such conduct. The poem is called Theology 
in Extremis, and it describes the feelings of an Englishman who 
had been taken prisoner by Mahometan rebels in the Indian mutiny. 
He is face to face with a cruel death. They offer him his life if he 
will repeat something from the Koran. If he complies no one is 
likely ever to hear of it, and he will be free to return to England and 
to the woman he loves. Moreover, and here is the real point, he is 
not a believer in Christianity, so that it is no question of denying 
his Savior. What ought he to do? Deliverance is easy and the 
relief and advantage would be unspeakably great. But he does not 
really hesitate, and every shadow of doubt disappears when he hears 


12 


HIGHER NATIONALITY. 


his fellow-prisoner, a half-caste, pattering eagerly the words de¬ 
manded. He himself has no hope of heaven and he loves life: 

Yet lor the honor of English race 
May I not live and endure disgrace. 

Ay, but the word if I could have said it, 

I by no terrors of hell perplext. 

Hard to be silent and have no credit 

From man in this world, or reward in the next, 

None to bear witness and reckon the cost 
Of the name that is saved by the life that is lost. 

I must begone to the crowd untold 

Of men by the cause which they served unknown. 

Who molder in myriad graves of old, 

Never a story and never a stone 
Tells of the martyrs who die like me. 

Just for the pride of the old countree. 

I will take another example, this time from the literature of ancient 
Greece: 

In one of the shortest but not least impressive of his dialogues, the 
Crito, Plato tells us of the character of Socrates, not as a philosopher, 
but as a good citizen. He has been unjustly condemned by the Athen¬ 
ians as an enemy to the good of the state. Crito comes to him in 
])rison to persuade him to escape. He urges on him many arguments, 
his duty to his children included. But Socrates refuses. He chooses 
to follow, not what anyone in the crowd might do, but the example 
which the ideal citizen should set. It would be a breach of his duty 
to fly from the judgment dul}^ passed in the Athens to which he 
belongs, even though he thinks the decree should have been different. 
For it is the decree of the established justice of his city state. He 
will not “ play truant.” He hears the words, “ Listen, Socrates, to 
us who have brought you up,” and in reply he refuses to go away 
in these final sentences: “ This is the voice which I seem to hear mur¬ 
muring in my ears, like the sound of the flute in the ears of the 
mystic; that voice, I say, is murmuring in my ears, and prevents me 
from hearing any other. And I know that anything more which you 
may say will be vain.” 

Why do men of this stamp act so, it may be when leading the battle 
line, it may be at critical moments of quite other kinds? It is, I think, 
because they are more than mere individuals. Individual they are, 
but completely real, even as individual, only in their relation to 
organic and social wholes in which they are members, such as the 
family, the city, the state. There is in every truly organized com¬ 
munity a common will which is willed by those who compose that 
community, and who in so willing are more than isolated men and 
women. It is not, indeed, as unrelated atoms that they have lived. 
They have grown, from the receptive days of childhood up to ma¬ 
turity, in an atmosphere of example and general custom, and their 
lives have widened out from one little world to other and higher 
worlds, so that through occupying successive stations in life they more 
and more come to make their own the life of the social whole in which 
they move and have their being. They can not mark off or define 
their own individualities without reference to the individualities of 
others. And so they unconsciously find themselves as in truth pulse 
beats of the whole system, and themselves the whole system. It is 
real in them and they in it. They are real only because they are 
social. The notion that the individual is the highest form of reality 
and that the relationship of individuals is one of mere contract, the 
notion of Hobbes and of Bentham and of Austin, turns out to be quite 


HIGHER NATIONALITY. 


13 


inadequate. Even of an everyday contract, that of marriage, it has 
been well said that it is a contract to pass out of the sphere of contract, 
and that it is possible only because the contracting parties are already 
beyond and above that sphere. As a modern writer, F. H. Bradley, 
of Oxford, to whose investigations in these regions we owe much, 
has finely said: 

The moral organism is not a mere animal organism. In the latter the member 
is not aware of itself as such, while in the former it knows itself and therefore 
knows the whole in itself. The narrow external function of the man is not the 
whole man. He has a life which we can not see with our eyes, and there is 
no duty so mean that it is not the realization of this and knowable as such. 
What counts is not the visible outer work so much as the spirit in which it is 
done. The breadth of my life is not measured by the multitude of my pursuits 
nor the space I take up amongst other men; but by the fullness of the whole 
life which I know as mine. It is true that less now depends on each of us as 
this or that man; it is not true that our individuality is therefore lessened, that 
therefore we have less in us. 

There is, according to this view, a general will with which the will 
of the good citizen is in accord. He feels that he would despise him¬ 
self were his private will not in harmony with it. The notion of the 
reality of such a will is no new one. It is as old as the Greeks, for 
whom the moral order and the city state were closely related, and we 
find it in modern books in which we do not look for it. Jean Jacques 
Rousseau is probably best known to the world by the famous words 
in which he begins the first chapter of the Social Contract: “ Man is 
born free, and everywhere he is in chains. Those who think them¬ 
selves to be the masters of others cease not to be greater slaves than 
the people they govern.” He goes on in the next paragraph to tell 
us that if he were only to consider force and the effects of it, he 
would say that if a nation was constrained to obey and did obey it 
did well, but that whenever it could throw off its yoke and did throw 
it off it acted better. His words, written in 1762, became a text for 
the pioneers of the French Revolution. But they would have done 
well to read further into the book. As Rousseau goes on we find a 
different conception. He passes from considering the fiction of a 
social contract to a discussion of the power over the individual of the 
general will, by virtue of which a people becomes a people. This gen¬ 
eral wull, the Volonte Generate, he distinguishes from the Volonte 
de Tous, which is a mere numerical sum of individual wills. These 
particular wills do not rise above themselves. The general will, on 
the other hand, represents what is greater than the individual voli¬ 
tion of those who compose the society of which it is the will. On occa¬ 
sions this higher will is more apparent than at other times. But it 
may, if there is social slackness, be difficult to distinguish from a mere 
aggregate of voices from the will of a mob. What is interesting is 
that Rousseau, so often associated with doctrine of quite another kind, 
should finally recognize the bond of a general will as what really holds 
the community together. For him, as for those who have had a yet 
clearer grasp of the principle, in willing the general will we not only 
realize our true selves, but we may rise above our ordinary habit of 
mind. We may reach heights which we could not reach, or which at 
all events most of us could not reach, in isolation. There are few 
observers who have not been impressed with the wonderful unity and 
concentration of purpose which an entire nation may display—above 
all in a period of crisis. We see it in time of war when a nation is 


14 


HIGHER NATIONALITY. 


fighting for its life or for a great cause. We have seen it in Japan, 
and we have seen it still more recently among the people of the Balkan 
Peninsula. We have marveled at the illustrations with which history 
abounds of the general will rising to heights of which but few of the 
individual citizens in whom it is embodied have ever before been 
conscious, even in their dreams. 

In his life of Themistocles, Plutarch tells us how even in time of 
peace the leader of the Athenian people could fashion them into an 
undivided community and inspire them to rise above themselves. It 
was before the Persians had actually threatened to invade Attica 
that Themistocles foresaw what would come. Greece could not raise 
armies comparable in numbers to those of the Persian Kings. But he 
told his people that the oracle had spoken thus: ‘‘ When all things 
else are taken within the boundary of Cecrops and the covert of 
divine Cithaeron, Zeus grants to Athena that the wall of wood alone 
shall remain uncaptured, which shall help thee and thy children.” 
The Athenian citizens were accustomed in each year to divide among 
themselves the revenue of their silver mines at Laurium. Themis¬ 
tocles had the daring, so Plutarch tells us, to come forward and 
boldly propose that the usual distribution should cease, and that they 
should let him spend the money for them in building a hundred 
ships. The citizens rose to his lead, the ships were built, and with 
them the Greeks were able at a later date to win against Xerxes, the 
great sea fight at Salamis, and to defeat an invasion by the hosts 
of Persia, which, had it succeeded, might have changed the course 
of modern as well as ancient history. 

By such leadership it is that a common ideal can be made to pene¬ 
trate the soul of a people and to take complete possession of it. The 
ideal may be very high or it may be of so ordinary a kind that we are 
not conscious of it without the effort of reflection. But when it is 
there it influences and guides daily conduct. Such idealism passes 
beyond the sphere of law, which provides only what is necessary for 
mutual protection and liberty of just action. It falls short, on the 
other hand, in quality of the dictates of what Kant called the cate¬ 
gorical imperative that rules the private and individual conscience, 
l3ut that alone; an imperative which therefore gives insufficient guid¬ 
ance for ordinary and daily social life. Yet the ideal of which I 
speak is not the less binding, and it is recognized as so binding that 
the conduct of all good men conforms to it. 

Thus we find within the single state the evidence of a sanction 
which is less than legal but more than merely moral, and which is 
sufficient, in the vast majority of the events of daily life, to secure 
observance of general standards of conduct without any question of 
resort to force. If this is so within a nation, can it be so as between 
nations? This brings me at once to my third point. Can nations 
form a group of community among themselves within which a habit 
of looking to common ideals may grow up sufficiently strong to 
develop a general will and to make the binding power of these ideals 
a reliable sanction for their obligations to each other ? 

There is^ I think, nothing in the real nature of nationality that 
precludes such a possibility. A famous student of history has be¬ 
queathed to us a definition of nationality which is worth attention. 
I refer to Ernest Eenan, of whom George Meredith once said to me, 
while the great French critic was still living, that there was more in 


HIGHER NATIONALITY. 


15 


his head than in any other head in Europe. Renan tells us that 
“ Man is enslaved neither by his race, nor by his language, nor by 
his religion, nor by the course of rivers, nor by the direction of 
mountain ranges. A great aggregation of men, sane of mind and 
Avarm of heart, creates a moral consciousness which is called a nation.” 
Another acute critic of life, MattheAv Arnold, citing one still greater 
than himself, draAvs Avhat is in effect a deduction from the same 
proposition. “ Let us,” he says,i “ conceive of the Avhole group of 
civilized nations as being, for intellectual and spiritual purposes, one 
great confederation, bound to a joint action and working toAvard a 
common result; a confederation Avhose members have a due knoAvl- 
edge both of the past, out of which they all proceed, and of each other. 
This Avas the ideal of Goethe, and it is an ideal AA^hich will impose 
itself upon the thoughts of our modern societies more and more.” 

But while I admire the faith of Renan and Arnold and Goethe in 
Avhat they all three believed to be the future of humanity, there is a 
long road yet to be traveled before what they hoped for can be fully 
accomplished. Grotius concludes his great book on War and Peace 
Avith a noble prayer: “ May God write,” he said, “ these lessons— 
He Avho alone can—on the hearts of all those who have the affairs 
of Christendom in their liands. And may He give to those persons 
a mind fitted to understand and to respect rights, human and divine, 
and lead them to recollect ahvays that the ministration committed to 
them is no less than this, that they are the goA^ernors of man, a 
creature most dear to God.” 

The prayer of Grotius has not yet been fulfilled, nor do recent 
events point to the fulfillment as being near. The world is probably 
a long Avay off from the abolition of armaments and the peril of war. 
For habits of mind which can be sufficiently strong with a single 
people can hardly be as strong betAveen nations. There does not exist 
the same extent of common interest, of common purpose, and of com¬ 
mon tradition. And yet the tendency, even as between nations that 
stand in no special relation to each other, to develop such a habit of 
mind is in our time becoming recognizable. There are signs that the 
best people in the best nations are ceasing to wish to live in a Avorld 
of mere claims and to proclaim on every occasion, “ Our country 
right or wrong.” There is growing up a disposition to believe that 
it is good, not only for all men but for all nations, to consider their 
neighbors’ point of view as well as their own. There is apparent, at 
least, a tendency to seek for a higher standard of ideals in interna¬ 
tional relations. The barbarism which once looked to conquest and 
the waging of successful Avar as the main object of statesmanship 
seems as though it were passing aAvay. There have been established 
rules of international law which already govern the conduct of war 
itself, and are generally observed as binding by all civilized people, 
with the result that the" cruelties of war have been lessened. If prac¬ 
tice falls short of theory, at least there is to-day little effective chal¬ 
lenge of the broad principle that a nation has as regards its neigh¬ 
bors duties as well as rights. It is this spirit that may develop as 
time goes on into a full international “ Sittlichkeit.” But such devel¬ 
opment is certainly still easier and more hopeful in the case of 
nations Avith some special relation than it is Avithin a mere aggregate 


1 Preface to the Poems of Wordsworth. 




16 


HIGHER NATIONALITY. 


of nations. At times a common interest among nations with special 
relations of the kind I am thinking of gives birth to a social habit 
of thought and action which in the end crystallizes into a treaty, a 
treaty which in its turn stimulates the process that gave it birth. We 
see this in the case of Germany and Austria, and in that of France 
and Russia. Sometimes a friendly relationship grows up without 
crystallizing into a general treaty. Such has been the case between 
my own country and France. We have no convention excepting one 
confined to the settlement of old controversies over specific subjects, 
a convention which has nothing to do with war. None the less, since 
in that convention there was embodied the testimony of willingness 
to give as well as to take, and to be mutually understanding and help¬ 
ful, there has arisen between France and England a new kind of 
feeling which forms a real tie. It is still young and it may stand 
still or diminish. But equally well it may advance and grow, and 
it is earnestly to be hoped that it will do so. 

Recent events in Europe and the way in which the great powers 
have worked together to preserve the peace of Europe, as if forming 
one community, point to the ethical possibilities of the group system 
as deserving of close study by both statesmen and students. The 
“ Sittlichkeit ” which can develop itself between the peoples of even 
a loosely-connected group seems to promise a sanction for inter¬ 
national obligation which has not hitherto, so far as I know, attracted 
attention in connection with international law. But if the group 
system deserves attention in the cases referred to, how much more 
does it call for attention in another and far more striking case. 

In the year which is approaching, a century will have passed since 
the United States and the people of Canada and Great Britain 
terminated a great war by the peace of Ghent. On both sides the com¬ 
batants felt that war to be unnatural and one that should never have 
commenced. And now we have lived for nearly a hundred years, 
not only in peace, but also, I think, in process of coming to a deepen¬ 
ing and yet more complete understanding of each other, and to the 
possession of common ends and ideals—ends and ideals which are 
natural to the Anglo-Saxon group, and to that group alone. It seems 
to me that within our community there is growing an ethical feeling 
which has something approaching to the binding quality of which I 
have been speaking. Men may violate the obligations which that 
feeling suggests, but by a vast number of our respective citizens it 
would not be accounted decent to do so. For the nations in such a 
group as ours to violate these obligations would be as if respectable 
neighbors should fall to blows because of a difference of opinion. We 
may disagree on specific points, and we probably shall, but the differ¬ 
ences should be settled in the spirit and in the manner in which citizens 
usually settle their differences. The new attitude which is growing 
up has changed many things, and made much that once happened no 
longer likely to recur. I am concerned when I come across things 
that were written about America by British novelists only 50 years 
ago, and I doubt not that there are some things in the American 
literature of days gone past which many here would wish to have 
been without. But now that sort of writing is happily over, and we 
are realizing more and more the significance of our joint tradition 
and of the common interests which are ours. It is a splendid example 


HIGHER NATIONALITY. 


17 


to the world that Canada and the United States should have nearly 
4.000 miles of frontier practically unfortified. As an ex-war minister, 
who knows what a saving in unproductive expenditure this means, 
I ferventl}^ hope that it may never be otherwise. 

But it is not merely in external results that the pursuit of a grow¬ 
ing common ideal shows itself when such an ideal is really in men’s 
minds. It transforms the spirit in which we regard each other, and 
it gives us faith in each other: 

Why, what but faith, do we abhor 
And idolize each other for— 

Faith in our evil or our good, 

^Yhich is or is not understood 

Aright by those we love or those 

We hate, thence called our friends or foes. 

I think that for the future of the relations between the United 
States on the one hand and Canada and Great Britain on the other 
those who are assembled in this great meeting have their own special 
responsibility. We who are the lawyers of the New World and of 
the old mother country possess, as I have said to you, a tradition 
which is distinctive and peculiarly our own. We have been taught 
to look on our system of justice not as something that waits to be 
embodied in abstract codes before it can be said to exist, but as what 
we ourselves are progressive!}" and cooperatively evolving. And our 
power of influence is not confined to the securing of municipal justice. 
AVe play a large part in public affairs, and we influence our fellow 
men in questions which go far beyond the province of the law, and 
which extend in the relations of society to that “ Sittlichkeit ” of 
Avhich I have spoken. In this region we exert much control. If, 
then, there is to grow up among the nations of our group, and between 
that group and the rest of civilization, a yet further development of 
“ Sittlichkeit,” has not our profession special opportunities of in¬ 
fluencing opinion which are coupled with a deep responsibility? 
To me, when I look to the history of our calling in the three countries, 
it seems that the answer to this question requires no argument and 
admits of no controversy. It is our very habit of regarding the law 
and the wider rules of conduct which lie beyond the law as something 
to be molded afresh as society develops, and to be molded best if 
Ave cooperate steadily, that gives us an influence perhaps greater than 
is strictly ours—an influence Avhich may in affairs of the state be 
potently exercised for good or for evil. 

This, then, is why, as a lawyer speaking to lawyers, I have a strong 
sense of responsibility in being present here to-day, and Avhy I be¬ 
lieve that many of you share my feeling. A movement is in progress 
which Ave, by the character of our calling as judges and as advocates, 
have special opportunities to further. The sphere of our action has 
its limits, but at least it is giA"en to us as a body to be the counsellors 
of our felloAV-citizens in public and in private life alike. I have be¬ 
fore my mind the Avords Avhich I haA^e already quoted of the present 
President of the United States, Avhen he spoke of “ laAvyers Avho can 
think in the terms of society itself.” And I believe that if, in the 
language of yet another President, in the famous Avords of Lincoln, 
Ave as a body in our minds and hearts “ highly resoh^e ” to Avork for 
the general recognition by society of the binding character of inter¬ 
national duties and rights as they arise Avithin the Anglo-Saxon 

S. Doc. 233, 63-1-2 


18 


HIGHER NATIONALITY. 


group, we shall not resolve in vain. A mere common desire may seem 
an intangible instrument, and yet, intangible as it is, it may be 
enough to form the beginning of what in the end can make the wliole 
difference. Ideas have hands and feet, and the ideas of a congress 
such as this may affect public opinion deeply. It is easy to fail to 
realize how much an occasion like the assemblage in Montreal of the 
American Bar Association, on the eve of a great international cen¬ 
tenary, can be made to mean, and it is easy to let such an occasion 
pass with a too timid modesty. Should we let it pass now I think a 
real opportunity for doing good will just thereby have been missed by 
you and me. We need say nothing; we need pass no cut and dried 
resolution. It is the spirit and not the letter that is the one thing 
needful. 

I do not apologize for having trespassed on the time and attention 
of this remarkable meeting for so long, or for urging what may seem 
to belong more to ethics than to law. We are bound to search after 
fresh principles if w^e desire to find firm foundations for a progressive 
practical life. It is the absence of a clear conception of principle that 
occasions some at least of the obscurities and perplexities that beset 
us in the giving of counsel and in following it. On the other hand, it 
is futile to delay action until reflection has cleared up all our difficul¬ 
ties. If we would learn to swim, we must first enter the water. We 
must not refuse to begin our journey until the whole of the road we 
may have to travel lies mapped out before us. A great thinker de¬ 
clared that it is not philosophy which first gives us the truth that 
lies to hand around us, and that mankind has not to wait for philos¬ 
ophy in order to be conscious of this truth. Plain John Locke put 
the same thing in more homely words when he said that “ God has not 
been so sparing to men to make them two-legged creatures, and left 
it to Aristotle to make them national.” Yet the reflective spirit does 
help, not by furnishing us with dogmas or final conclusions, or even 
with lines of action that are always definite, but by the insight which 
it gives; an insight that develops in us what Plato called the “ syn¬ 
optic mind ” ; the mind that enables us to see things steadily as well 
as to see them whole. 

And now I have expressed what I had in my mind. Your welcome 
to me has been indeed a generous one and I shall carry the memory 
of it back over the Atlantic. But the occasion has seemed to me sig¬ 
nificant of something beyond even its splendid hospitality. I have 
interpreted it, and I think not wrongly, as the symbol of a desire that 
extends beyond the limits of this assemblage. I mean the desire that 
we should steadily direct our thoughts to how we can draw into 
closest harmony the nations of a race in which all of us have a com¬ 
mon pride. If that be now a far-spread inclination, then indeed may 
the people of three great countries say to Jerusalem “ Thou shall be 
built,” and to the temple “ Thy foundation shall be laid.” 


o 



LIBRARY OF CONGRESS 



0 027 119 791 3J 







































































